On Feb. 1, 2022, Boulder’s City Council voted 6-3 to allow a Boulder Police Department (BPD) officer to join the FBI’s Joint Terrorism Task Force (JTTF) in Denver, a federal anti-terrorism operation that’s been running in the Mile High City since 1994—but only if the BPD-FBI memorandum of understanding (MOU, a formal but not legally binding document that outlines an agreement between two parties) is amended to address some transparency, accountability, and bias concerns surrounding the partnership.
Council asked for the MOU to explicitly state the BPD-JTTF officer will remain bound by local department conduct policies even when engaged in the FBI’s JTTF projects. This stipulation would diverge from the standard JTTF agreements that exist in nearly 200 U.S. cities today; typically, when local law enforcement officers engage with JTTF work, they’re treated as federal law enforcement officers, thereby allowed to operate under federal policies and procedures, instead of local ones.
Council also requested the MOU include clauses to specify just one BPD officer will participate in the JTTF, and that an annual report of task force activities will be produced for council (though the metrics and content expected in the report were not discussed).
According to BPD Chief Maris Herold, the amended MOU was returned to the FBI, and the document remains in the federal agency’s hands. “Our legal teams and their legal teams all the way to D.C. are working through these [changes],” she says. When a decision will be made about the MOU and BPD’s involvement in the JTTF is unknown. The FBI declined to comment for this article.
Herold, who took the helm of BPD in 2020, says the delay is due, in part, to the fact that legislation passed in Colorado “after the George Floyd murder [created] a different state than the FBI is accustomed to.” She cites Colorado’s progressive body-worn-camera mandate and the 2020 ban on qualified immunity as examples of post-Floyd changes that’ve widened gaps between local and federal policies. (By contrast, FBI agents are not currently required to wear body cameras and are protected by qualified immunity, though national debates about the merit of said policies are ongoing.)
“I really don’t know how this is going to turn out,” Herold says, but “after my two years here, there is a great need to have this agreement.”
BPD receives 80,000 calls for service every year, Herold says, characterizing Boulder as a “target-rich environment for potential terrorism threats” since it’s home to major research institutions, Jewish and Muslim places of worship, women’s health centers, LGBTQ+ and refugee communities, tourist populations, and high-profile landmarks.
Over the years, terrorism threats have increased, Herold says, which is why the BPD-JTTF partnership is necessary—take the March 2021 King Soopers’ mass shooting, for example, or February 2022’s close-call with a wanted man from California hiding on University Hill; and, according to a 2021 Southern Policy Law Center report, 18 hate groups currently operate in Colorado, with 715 hate and 488 anti-government groups active elsewhere in the country. JTTFs aim to “create familiarity” among local and federal law enforcement teams, ensuring collaboration streams are in place before crises occur, per the FBI website.
As Herold explained to Council during the BPD-FBI MOU public hearing on Feb. 1, joining a JTTF adds valuable resources to the department; not only would it lead to extra response support in the event of emergency—what we saw in response to the incidents at King Soopers and on University Hill are examples of JTTF-level support, Herold says, as she’d been working closely with the FBI in preparation for presenting the MOU to Council—it would also allow the FBI to share high-clearance information with the BPD-JTTF officer, who would be trained on the FBI’s dime for security clearances higher than Chief Herold’s. New investigation technologies would also be delivered to Boulder to help assess and address terrorism threats.
“My main concern is keeping the community safe,” Herold says. “That’s it. There’s nothing more hidden in there.”
Yet many community members, including those specifically identified by Herold as potential terrorism targets, are concerned the BPD-JTTF partnership will introduce more problems to an already broken system; the partnership invites the FBI, an agency with a history of problematic investigatory practices, into local information systems; it also lends the BPD officer to FBI projects, which could lead to scenarios where the BPD officer is asked to operate outside of Boulder’s local police policies and procedures.
“In Boulder, our police department has a well-documented problem with bias, specifically racial bias,” explains Lindsey Loberg, member of Boulder’s Human Relations Commission, the city board that advocates for amicable relations among community members and reviews local human rights concerns. “I know that this is a systemic issue hundreds of years in the making, and I know it is an ongoing problem.”
Herold acknowledges concerns around JTTFs and the FBI exist, but that all boils down to trust: “Do you trust me? Something bad may happen, but I’m going to hold people accountable. I’m going to be transparent.”
In communities elsewhere, however, JTTFs have further frayed existing trust issues between law enforcement and populations at risk for discrimination. “There’s different standards for how a federal agent can operate compared to a local one,” says Brian Hofer, chair of Oakland, California’s Privacy Advisory Commission and executive director of Secure Justice, a non-profit organization advocating for reduction in government and corporate overreach. In 2020, Hofer helped lead a coalition of more than two dozen social justice groups in a successful effort to remove the Oakland Police Department from participation in the Bay Area’s JTTF, following in the footsteps of other cities like Atlanta, Saint Paul, San Francisco, Albuquerque, and Portland.
“The concern everywhere is that weaker federal standards are problematic,” Hofer explains. “When these local officers get assigned to these task forces, they’re no longer legally local officers. They are federal agents,” which means they’re treated differently in court and disciplinary matters, and also allowed to use federal investigatory measures, he says. “Some of the federal tactics are extremely dangerous. You can put people under surveillance without even any reasonable suspicion. You could do demographic mapping. [There are] a lot of use-of-force differences, and the way criminal intelligence is treated and commingled with immigration [law enforcement] obviously is a big [difference],” as ICE is “the second-largest partner in the JTTF. And they share all the data.”
Herold assures participation in the JTTF will not compromise Boulder’s status as a sanctuary city: “I can guarantee at the Boulder Police Department, nobody’s interested in anybody’s immigration status.”
In the U.S. there are more than 18,000 local police departments, each subject to different state, county, and city laws and codes, with different policies, practices, and officer training programs. “There is no universal standard for the structure, size, or governance of police departments in the United States,” explains the U.S. Justice Department in Policing 101, its “Police-Community Relations Toolkit.”
The law enforcement standards that govern BPD were designed according to the U.S. and Colorado constitutions, with local details added via community input during public hearings and study sessions over time. As a JTTF officer, a BPD officer could be acting against local regulations when complying with FBI standards.
“That creates a conflict that I believe is insurmountable,” says former FBI special agent Michael German. In 2018 and 2020, he testified in Portland and Oakland (respectively), in favor of the cities withdrawing from JTTFs; because the partnership introduces double-standards to local law enforcement agencies at a number of points, he argued, it effectively allows the FBI to pick and choose which policies—federal, state or local—behoove their interests at any given time, something he and the American Civil Liberties Union (ACLU) call “policy laundering.”
German was assigned to a JTTF in the ’90s as an undercover FBI agent in Southern California, working on domestic terrorism investigations of criminal activity by white supremacists. The JTTF program was in its third decade of operation at the time, having been created after the 1972 Munich Olympics, when an attack on Israeli athletes pushed the FBI to funnel more resources into the prevention and disruption of terrorism both abroad and domestically.
“The concept was that different federal and state law enforcement agencies all have different strengths and weaknesses,” German says. The system worked well during his first years as a JTTF agent, he recalls; in the ’90s, the FBI’s rules were “at least as strong, if not stronger than most other federal, state, local law enforcement agencies,” so participating in a JTTF “was sort of raising the level of control over the activities.”
That changed in 2001. In the wake of 9/11, the FBI pivoted to focus on information gathering for the explicit prevention of crimes, work that requires prediction.
After 9/11, the FBI’s rules were reduced significantly, “so that they’re now below what many other federal and particularly state law enforcement rules require,” says German, who left the FBI in the mid-2000s after experiencing its operational standards decline; since 2014 he’s been a fellow at New York University’s Brennan Center for Justice’s Liberty and National Security Program, which seeks to ensure that the U.S. government respects human rights and fundamental freedoms in conducting the fight against terrorism.
More changes occurred in 2008 and 2011, German says. “The FBI modified its own internal policy, to create pre-assessment authority, that even without formally opening an investigation, FBI agents can conduct a lot of investigative steps—like searching online sources, including subscription sources, searching government databases for information about somebody. So these rules no longer protect individual rights and privacy, and create an opportunity for agents to allow their bias to drive who gets investigated.”
He explains: “Instead of focusing on evidence to suggest the subject under investigation had engaged in some kind of wrongdoing or was planning to, the analysis was turned to what the agent’s purpose was: So as long as the agent asserted that the purpose was to prevent crime or terrorism or some other national security threat, they could investigate somebody.
“That’s where bias starts to drive investigations, because you’re no longer using evidence to justify your investigation, you’re using other factors and presuppositions about who might be harmful in the future.”
Policies governing information disclosure can also differ between federal and local agencies, making requests for information protected by the Freedom of Information Act (FOIA) subject to higher levels of scrutiny and redaction when the FBI is involved. “The FBI has very strong protections against disclosure, and even more to the point, since most of the activity is secret, even from the police department, there’s little way for the community to find out exactly what they’re doing with city and state resources,” German says. (An information request submitted to the City on March 8, asking to review FBI-BPD communication records between December 2021 and February 2022 is still pending review.)
In his 2019 book, Disrupt, Discredit, and Divide: How the New FBI Damages Democracy, German details how these changes—justified as the response to accusations that pre-9/11 intelligence collection protocols were too strict to have prevented the 9/11 terrorist attacks—transformed the FBI into “arguably the most secretive domestic intelligence agency the country has ever seen.”
Plus, JTTFs are operationally redundant, German says. After 9/11, “intelligence fusion centers” were established across the country, places where federal, state, and local law enforcement agencies—including the FBI and Department of Homeland Security—could share information with one another and collaborate on actions. “So if the fusion center is operating properly, there should be no information or very little information that the Joint Terrorism Task Force (JTTF) has about pending threats that isn’t shared broadly with local law enforcement already.”
BPD Chief Herold, however, says the FBI is “not legally bound to communicate the delicate details of how to prevent things from happening,” and therefore needs the JTTF, and a BPD officer trained to work with them, as a supplemental information source.
CU Boulder’s Police Department (CUPD) is also currently seeking participation in the JTTF. “The partnership among Boulder Police, CUPD, and the FBI is vital to protect the safety of the community, and we are looking to strengthen this relationship,” Doreen Jokerst, assistant vice chancellor for public safety and CUPD chief, said in an emailed statement. “It is vital on projects ranging from missing persons cases to protecting Boulder’s and CU’s federally supported laboratory infrastructure.”
Kevin Klein, director of the Colorado Information Analysis Center (CIAC, the state’s intelligence fusion center, nestled under the Colorado Division of Homeland Security and Emergency Management), serves on Denver’s JTTF Board and works closely with the FBI-Denver Special Agent in Charge, Michael Schneider, who declined to be interviewed for this article. Klein says the joint terrorism task force is a critical part of CIAC’s regional operation. While his team collects and shares information about terrorism threats with law enforcement agencies of all stripes across the state, the JTTF acts upon the information, conducting investigations and field work. Without them, he says, the center wouldn’t be able to do much with the information they gather.
He also highlights how partnering with local police departments can help the FBI address “cultural differences” that crop up without local liaisons, who are naturally better informed about community nuances.
The partnership is a win-win in Klein’s eyes, especially considering the FBI has only about 12,000 agents, which are spread thinly around the globe: “Local law enforcement provides bodies to the JTTF, the FBI then provides funding, training, security clearances—those types of expenses,” Klein says. “It’s a force multiplier.”
Reduced accountability and oversight
Boulder’s City Council addressed the possibility and concern of double-standards in amendments to the draft MOU, but similar efforts to ensure local JTTF officers adhere to local policy haven’t proven successful elsewhere.
Before Oakland’s City Council voted to remove its police force from the Bay Area JTTF, it tried to rectify the partnership’s mismatched policies with a resolution requiring Oakland Police Department (OPD)-JTTF officers “to at all times follow state and local laws and policies,” says Javeria Jamil, who in 2020 worked with the Asian Law Caucus, an organization that helped lead both Oakland and San Francisco away from JTTF partnerships. Jamil now serves as the legal and policy director for the Council on American-Islamic Relations chapter in Atlanta, Georgia.
Jamil started working with the Asian Law Caucus during the resolution’s first year on the books in Oakland, recalling “there was a lot of struggle there.” For instance, “we had to keep on arguing with [the JTTF], going back and forth, telling them that they’re misreading the California law,” she says; information that was once available via records requests organization suddenly wasn’t anymore. “[OPD had] released this information in other instances. So why [the new] exception?”
When the summer of 2020 hit, Oakland, a longtime hub for activists, hosted some of the nation’s largest social justice demonstrations. “There were numerous reports and incidents,” during these gatherings, Jamil says, “where it was clear that the OPD wasn’t following their own rules and regulations.”
This echoes a 2010 report from the ACLU of Colorado confirming the Denver JTTF has, at times, targeted “peaceful, political activists for harassment and [has been] building files on constitutionally-protected political activities and associations that have nothing to do with terrorism or other criminal activity.”
In a statement, the ACLU’s legal director at the time, Mark Silverstein, said, “These documents confirm that the FBI’s anti-terrorism unit is targeting nonviolent activists and unjustifiably treating constitutionally-protected dissent as though it were potential terrorism.” The Denver Police Department declined to be interviewed for this article.
Under the Trump administration, Hofer, with Secure Justice says, “Those last few years were so unbelievably bad for the JTTFs—targeting the DAPL pipeline protesters, targeting Black Lives Matter organizers, helping ICE deport people that were critical of ICE, like DACA students, [and] they did infiltrate Occupy Oakland when we were here.”
A letter sent by dozens of Bay Area civil rights organizations to Oakland’s City Council in September 2020 pointed to San Francisco’s experience with the JTTF. For five years, the San Francisco Police Department (SFPD) “assured elected officials and city residents that SFPD officers participating in the JTTF were following all state and local laws and policies,” but via a 2019 records request, the coalition of organizations found a white paper from 2016, Jamil says, “an analysis that the FBI did for the SFPD around their participation in the JTTF,” which concluded the FBI could only comply with the city’s “Safe San Francisco Civil Rights Ordinance” if its standing policies, which are identical to the Oakland Ordinance, were weakened.
“And so we [told the FBI], ‘We don’t want our police to be working with you,” Hofer says. “You could be putting our undocumented folks at risk.’”
For many people, “reduced accountability and oversight for law enforcement makes them less safe from police violence,” Boulder Human Relations Commissioner Loberg says. “More surveillance, more data collection, and more data sharing between law enforcement bodies all undermine Boulder as a sanctuary city. The extent to which all people can participate in public life and access services diminishes, and quality of life diminishes as a result. This makes Boulder less welcoming and inclusive, and it also makes Boulder less safe.”
Beyond the presentation of bias and transparency issues, Hofer says what ultimately sold Oakland’s City Council on its JTTF withdrawal was a lack of “helpful incidents; thankfully, there were no actual terrorist attacks, [but] with no success cases there’s nothing actually there [to justify its need], and that’s mostly what the council voted on.”
Yet it’s difficult to measure the success of anti-terrorism work, says Colorado Information Analysis Center Director Klein. “A lot of it is what I call the paradox of prevention,” he says. “When you’re able to intervene at a really low level, [the threat] doesn’t happen. That’s the good news: we’ve processed a lot of information that we’ve given to the FBI, and there’ve been some interventions.”
According to Herold, talks about BPD joining the Denver JTTF have been ongoing since the day she took office: “They approached me about this,” she says.
If Boulder’s amended MOU isn’t approved by the FBI, Herold says, “Colorado is going to really have to take a hard look at this moving forward, because it’s hard to get exact alignment on these issues, and even though I think our federal partners across the country are moving in the same direction that local municipalities are moving in—about trying to have progressive policies—sometimes they’re just different, and they can’t be aligned perfectly to meet our state mandates.
“I can only speak from my experience,” she says, having worked with JTTF agents and officers while serving on police forces in Cincinnati, Ohio, before her tenure in Boulder. “I understand that there are groups of people that historically have been targeted [by federal agents]. I have not seen that personally, but there’s no doubt in my mind that in some part of history there [were] serious concerns,” she says. “And I most certainly would not tolerate that.”
When asked how she’ll ensure bias stays out of the BPD-JTTF partnership, she says, “I’m not concerned with it at all. … I believe in the detective [who’s been picked to receive FBI training for the JTTF]. I believe in our partners at the FBI, and one thing that I do well is hold people accountable. … Everybody knows that about me. If there’s one thing that I will do … I will hold you accountable to a high standard.
“At the end of the day, I just feel like I wouldn’t be doing my job if I didn’t have this agreement, and I might not get it,” Herold says. “I understand [people’s] concerns, I really do, but I have to look at it as: How do I best prevent community harm? And this is just another way that I prevent community harm—that’s it.”